2023-08-04 00:18:57
Friday, August 4, 2023, 00:18
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According to the INE, last year more than 81,000 couples divorced in Spain, of which 27,200 were made up of people over 50 years of age. They are the protagonists of what are now called gray (or silver) divorces, which can have very special connotations derived precisely from the age of their protagonists. Among the economic ones, one of the most notable is how the separation affects the savings that they were allocating jointly to a retirement that, against the initial intention, they will no longer share.
In Spain there is no law that regulates what happens with a pension plan in the event of divorce if the marriage was in community property. These savings instruments can only be in the name of one person (the beneficiary is always the owner), which means that it is a private asset and, as such, would not enter into the distribution of property.
At least, in principle, because in many cases the money with which this plan has been nourished does form part of community assets, and these must be distributed 50%. In other words, the accumulated assets do not always belong exclusively to the plan holder and the other spouse can demand that the amounts that have been contributed form part of the inventory of assets to be distributed. So, if there is no agreement between the parties to carry out this distribution, it will be the courts that determine where the contributions came from and, consequently, whether or not the plan should be considered community property.
What if each spouse has their own plan but the contributions to both have been made only by one of the couple? This is very frequent since it is one of the ways to achieve tax deductions, but in these cases there is nothing established on how to recover these contributions in the case of separation and, again, it is at the expense of the judge’s interpretation.
Eye! Divorce does not give the right to withdraw savings
On the other hand, it must be taken into account that divorce is not one of the admitted reasons to be able to redeem the contributions of a pension plan within ten years of its opening. So, what would have to be agreed upon (or what the judge could order) would be the future distribution (or embargo, if it is by court order) of the total value of the plan at the time the holder (whether due to retirement or for any of the other admitted causes) if you can redeem the funds. And if we separate when we are already retired, we must know that there is no possibility that the same plan makes payments to more than one person, so any distribution would be equivalent to its liquidation.
In practice, what is usually done to simplify the matter is to subtract the value of the plan at the time of divorce from what would correspond to its owner in the distribution of the rest of the property. To give an example, if there are 10,000 euros in the plan and the rest of the couple’s assets are valued at 100,000, each spouse would be entitled to 5,000 euros from the plan and 50,000 from the rest of the assets. To execute the distribution in an equitable manner and without liquidating the plan, its owner would be given its value plus 45,000 euros, while the non-owner would obtain his 55,000 entirely from the division of the rest of the property.
There is a third assumption: that the pension plan is a company one. In this case, two possibilities must be distinguished. If the contributions made by our company to the plan are part of the salary, they will form part of the joint venture, but if they are not considered salary, the plan will be exclusive to its owner.
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